Saved by lousy law-writing skills

Chief Justice John Roberts just saved the Affordable Care Act — again. If you’re feeling déjà vu, you’re not alone. As he did in 2012, Roberts defected from his conservative colleagues and joined the liberals in refusing to send Obamacare into a death spiral. In King v. Burwell, Roberts has now cemented his reputation as a true believer in judicial restraint — perhaps as the only justice who still believes in it. And this time, he was given cover by Anthony Kennedy, making the vote 6-3.

The opinion was straightforward — the way it always should’ve been. Roberts acknowledged that the provision of the ACA at issue in the case, providing subsidies for individuals to buy health insurance, was badly drafted. It should’ve read that the subsidies were available for insurance exchanges “established by the state or on behalf of the state,” he implied. Instead it read only, “established by the state.” The petitioners argued this meant the subsidies couldn’t go to people buying insurance on the federally established exchange.

Roberts explained (with considerable understatement) that the ACA contains “more than a few examples of inartful drafting.” The law was passed in a hurry, and drafted “behind closed doors,” he pointed out. It was enacted under the arcane process known as reconciliation, to avoid being filibustered in the Senate. There was no conference committee to work out the kinks.

Roberts was, in essence, expressing a criticism. “The Act does not reflect the type of care and deliberation that one might expect of such significant legislation,” he noted. But the very bad drafting of the ACA turned out to be its saving grace. Instead of reading the “established by the state” line literally, eliminating subsidies to federally established exchanges, he concluded that the line was ambiguous when taken in context.

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The admission of ambiguity led Roberts to ask about the context of the entire statute. And there, he reasoned, Congress couldn’t have intended to put in a sentence that would break the act and send insurance markets into a death spiral.

The punchline of the opinion, in fact, was a joke, albeit one with serious meaning. Roberts quoted an essay on statutory interpretation by the great Justice Felix Frankfurter, the father of the modern idea of judicial restraint. Frankfurter described a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”

The citation amounted to an acknowledgment of Frankfurter as Roberts’ guiding light when it comes to the exercise of judicial restraint. In practice, Roberts was saying, Congress did a poor job passing the ACA — but he was going to save Congress from its own error. Or to be a bit more precise, Roberts wasn’t willing to use Congress’ sloppiness to subvert Congress’ intent.

The last time Roberts saved the ACA, he managed to damage it at the same time. Then, he invented a new doctrine, the “gun to the head,” that said Congress couldn’t threaten the states with withdrawal of their Medicaid funding to give them the proper incentive to extend Medicaid to the uninsured. As a result of that ruling, millions of Americans remain uninsured despite the universal coverage aspirations of the law as drafted.

After the oral argument in the King case, commentators, myself included, speculated that the gun to the head argument might’ve been used to save the act. This time, the gun to the head wasn’t in evidence.

Instead, Roberts just rejected the legal challenge altogether. His coda was an impressive statement of common sense: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

The decision isn’t only a win for judicial restraint. It’s also a win for common-sense statutory interpretation, which looks to the purpose of the law, not merely to its text. Justice Antonin Scalia, in dissent, applied his preferred method of textualism.

In typically acerbic and emphatic fashion, he wrote, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

But, of course, Scalia is wrong — at least when it comes to the interpretation of the law. The justices’ job isn’t to function as a dictionary. It’s to make the laws make sense. For that, you need to know the purpose of the law. Frankfurter was also an advocate of looking to the law’s purpose. Somewhere, he’s smiling.